What Expungement or Record Restriction Can Do For You

Record Restriction is an Element of Justice.

Understanding and engaging in the expungement process in Georgia can seem like a daunting task. Yet, this legal process is crucial in restoring opportunities for individuals with a past criminal record. It is a lifeline for many who seek a fresh start and a brighter future.

The term 'expungement', also known as 'record restriction' in Georgia, refers to the process where certain criminal records are legally sealed or removed from public view. This process is significant as it allows those with a criminal history to pursue education, housing, or employment opportunities without their past record causing hindrances.

Georgia’s Record Restriction full rules are codified in the Official Code of Georgia Annotated (O.C.G.A.) § 35-3-37.

The full text of O.C.G.A. 35-3-7 that governs how this process works is below in full, and the version with the official comments can also be accessed through the Georgia Secretary of State website using Lexis Nexis.

Georgia made major changes between 2019 to 2020 to not only the procedure for requesting your records to be restricted but also expanded the classes of individuals who are eligible to have their records restricted.

O.C.G.A. § 35-3-37(a)(6) states that “Restrict,” “restricted,” or “restriction” means that the criminal history record information of an individual relating to a particular offense shall be available only to judicial officials and criminal justice agencies for law enforcement or criminal investigative purposes or to criminal justice agencies for purposes of employment in accordance with procedures established by the center and shall not be disclosed or otherwise made available to any private persons or businesses pursuant to Code Section 35-3-34 or to governmental agencies or licensing and regulating agencies pursuant to Code Section 35-3-35.”

Record Restriction does not eliminate all records but still allows the government to view your records in certain situations such as during a later criminal action against a defendant or during the interview process for employment with Federal or Local Government.

Georgia has two sets of rules for how to start the expungement process depending on your arrest date.

Record Restriction for Arrests Prior to July 1, 2013

If your arrest is before July 1, 2013 individuals have the option to request the arresting law enforcement agency to restrict their criminal history record information, including fingerprints and photographs related to an arrest. The agency and the center can charge reasonable fees for the process, but the fee can not exceed $50.00.

If an individual makes such a request in writing, the arresting law enforcement agency is required to provide a copy of the request to the prosecuting attorney within 30 days of receiving it. The prosecuting attorney has 90 days to review the request and determine if it meets the criteria for record restriction. If the request is denied, the prosecuting attorney must provide specific reasons for the denial in writing and include relevant documentation used to make the decision. If the prosecuting attorney does not respond within the 90-day period, it is presumed that they did not object to the request, and the arresting law enforcement agency can proceed with restricting the records.

If the prosecuting attorney declines an individual's request, the individual can file a civil action in the superior court of the county where the arrest occurred. The prosecuting attorney's decision will be upheld unless the individual can prove, with clear and convincing evidence, that the arrest was eligible for record restriction according to the criteria set forth in subsection (h) and that the harm to their privacy outweighs the public interest in keeping the criminal history record information publicly available.

To restrict criminal history record information at the centralized records maintained by the Georgia Bureau of Investigation, an individual has to submit a record restriction request approved by the prosecuting attorney or a court order to the GBI. The GBI would then proceed to restrict access to the criminal history record information within 30 days of receiving the request or order.

SB 288 passed by the Georgia Legislature went into effect on January 1, 2021 and allows any individual to restrict up to two misdemeanor convictions from their records at least 4 years after completing any probation or sentencing requirements. Any individual may request up to two misdemeanor (subject to exceptions for certain offenses) convictions or pleas in their lifetime.

Record Restriction for Arrests on or after July 1, 2013

For arrests that occurred on or after July 1, 2013, you skip the contact with the local agency and go straight to the prosecuting agency instead (assuming the case was indicted properly). The prosecuting agency can then dictate the process which may include a formal typed application with documents that are eventually sent to the local agency or may require the drafting of a Motion to Expunge and Restrict which is then used to obtain a court Order restricting the individual’s records.

For all cases, there is also an appeal process if your first request is denied. It requires the person requesting the record restriction to show by the preponderance of evidence that the current records are incomplete or misleading.

Who is eligible for Record Restriction in Georgia?

The rules state that individuals are eligible for record restriction under the following circumstances:

1. Prior to indictment, accusation, or other charging instrument:

• Individuals may request the arresting law enforcement agency, in writing, to restrict their criminal history record information if the offense was never referred for further prosecution to the prosecuting attorney by the arresting law enforcement agency and either the arresting agency has closed the offense against the individual or the center has not received notice of the offense being referred to another agency for prosecution. The arresting law enforcement agency must inform the center within 30 days of its decision to restrict the record. If the center does not receive notice within specific time frames from the date of the arrest (two years for a misdemeanor, four years for a felony, and seven years for serious violent felonies or felony sexual offenses involving a victim under 16), the record shall be restricted for noncriminal justice purposes.

• If the offense was referred to the prosecuting attorney but was later dismissed, individuals may request record restriction.

• Individuals may request record restriction if the grand jury returned two no bills.

• Individuals may request record restriction if the grand jury returned one no bill and specific time frames have expired from the date of the arrest (the same periods mentioned above).

2. After indictment or accusation:

• Individuals may request record restriction if all charged offenses were dismissed, nolle prossed, or reduced to a violation of a local ordinance.

• If the individual was sentenced in accordance with certain provisions of the law and either the court ordered restriction upon sentencing or the individual successfully completed the terms and conditions of their probation, they can request record restriction.

• If the individual pleaded guilty to or was found guilty of specific offenses and was sentenced in accordance with certain provisions of the law, and either the court ordered restriction upon sentencing or the individual successfully completed the terms and conditions of their probation, they are eligible for record restriction.

• If the individual successfully completed a drug court treatment program, mental health treatment program, or veterans treatment program, and their offense was dismissed or nolle prossed, and they have not been arrested during such program (excluding nonserious traffic offenses), they can request record restriction.

• Individuals acquitted of all charged offenses by a judge or jury may request record restriction unless the prosecuting attorney can demonstrate within ten days of the verdict that the harm resulting to the individual is outweighed by the public interest in the criminal history record information being publicly available due to specific circumstances.

3. Additional eligibility under subsection (j):

• If an individual had a felony charge dismissed or nolle prossed, or was found not guilty of such charge, but was convicted of a misdemeanor offense that was not a lesser included offense of the felony charge, they may petition the court within four years of the arrest to restrict access to criminal history record information for the felony charge.

• If an individual was convicted of an offense, but the conviction was vacated or reversed, and the prosecuting attorney has not retried the case within two years of the date the order vacating or reversing the conviction became final, they may petition the court to restrict access to criminal history record information for such offense.

• If an individual's charged offense has remained on the dead docket for more than 12 months, they may petition the court to restrict access to criminal history record information for such charged offense.

• If an individual was convicted of certain misdemeanors arising from a single incident and has completed the terms of their sentence, has not been convicted of any crime in any jurisdiction for at least four years prior to filing a petition, and has no pending charged offenses, they may petition the court to restrict access to criminal history record information. However, certain offenses listed in the law (e.g., family violence-related offenses, offenses related to minors, theft, serious traffic offenses) are not eligible for record restriction.

• If an individual was arrested on a fugitive from justice warrant, they may petition the superior court in the county where the arrest occurred to restrict access to criminal history record information for such warrant.

• A defendant convicted of an offense and sentenced while being a victim of an offense of trafficking may petition the court imposing the sentence to restrict such conviction.

• Individuals may request record restriction if they were convicted in the state of an offense for which they have been granted a pardon from the State Board of Pardons and Paroles as provided in the Constitution and Code Section 42-9-42, provided that the offense was not a serious violent felony as such term is defined in Code Section 17-10-6.1 or a sexual offense as such term is defined in Code Section 17-10-6.2, and provided, further, that such individuals have not been convicted of any crime in any jurisdiction (excluding nonserious traffic offenses) since the pardon was granted, and provided, further, that they have no pending charged offenses.

First Offender and Conditional Discharge

An individual who completes their full probation and plea requirements under the Georgia First Offender Act or Georgia Conditional Discharge codified at O.C.G.A. § 16-13-2 is eligible to have their arrest and all records restricted.

Once you have obtained approval for your record restriction from either the arresting agency or the prosecuting agency, you will need written authorization of such a decision from the approving agency.

Once you have the written approval or a signed court order you must then provide that proof to the Georgia Bureau of Investigations Record Restriction Department in writing. The GBI then has 30 calendar days to restrict your records within their centralized information system, GCIS.

Benefits of Record Restriction

Improved Employment Opportunities:

One of the most significant advantages of expungement in Georgia is the enhancement of employment opportunities. A criminal record can be a significant barrier to securing gainful employment. Many employers conduct background checks on potential hires, and a past conviction can lead to rejection, even if the offense is unrelated to the job in question. Expungement removes the public visibility of the criminal record, making it easier for individuals to present themselves with a fresh start during job interviews. This newfound ability to demonstrate rehabilitation and a commitment to change increases the chances of landing meaningful employment.

2. Access to Better Housing Options:

Expungement can also positively impact housing prospects. Many landlords and property management companies conduct background checks on prospective tenants. A criminal record can lead to rejection or limited housing options, affecting an individual's ability to find suitable accommodation. With expungement, the criminal record is sealed, making it inaccessible to the general public, including potential landlords. This gives individuals a better chance of obtaining safe and stable housing for themselves and their families.

3. Restoration of Certain Rights:

Expungement in Georgia can lead to the restoration of certain rights that may have been impacted by a criminal record. For instance, the right to vote, serve on a jury, or hold public office can be affected by certain convictions. By expunging their records, individuals can regain these fundamental rights and actively participate in their communities.

4. Easing the Stigma and Emotional Burden:

Having a criminal record can lead to social stigma and emotional distress. The weight of past mistakes can be a constant source of anxiety and can hinder personal growth and well-being. Expungement offers a fresh start, allowing individuals to move forward without the constant reminder of past errors. This newfound sense of closure and peace of mind can positively impact mental health and overall happiness.

5. Enhanced Educational Opportunities:

Criminal records can impact educational opportunities as well. Many academic institutions, particularly professional and graduate programs, require background checks for admission. Expungement enables individuals to pursue their educational goals without the fear of being denied based on past mistakes. It opens doors to advanced studies, scholarships, and other educational benefits that may have otherwise been out of reach.

6. Better Access to Financial Aid:

A criminal record can affect eligibility for financial aid, making it difficult for individuals to pursue higher education. By expunging their records, individuals may become eligible for various forms of financial assistance, making education more attainable and affordable.

7. Protecting Personal and Professional Relationships:

A public criminal record can impact personal relationships and professional networking. Expungement allows individuals to protect their privacy and maintain positive relationships with friends, family, and colleagues. It prevents the public dissemination of sensitive and potentially damaging information.

Record Restriction in Georgia offers a host of transformative benefits for individuals burdened by past criminal convictions. From improved employment and housing prospects to restored rights and a sense of emotional closure, expungement provides a chance for individuals to rebuild their lives and contribute positively to society. By granting a fresh start, Georgia's expungement laws promote rehabilitation and reduce the long-term impacts of past mistakes. Embracing the potential of record restriction allows individuals to move forward with hope and optimism, unlocking a world of opportunities that may have otherwise been inaccessible.

Contact RAM LAW today for a free case evaluation to determine whether your case is eligible for record restriction in Georgia via email, text, or phone.